Legal Sidebari
Congress and Law Enforcement Reform:
Current Law and Recent Proposals
June 4, 2020
In May and June 2020, protests erupted nationwide after the publication of video footage of a
Minneapolis police officer pressing his knee into the neck of George Floyd, leading to his death. That
incident and its aftermath have sparked heightened interest in Congress’s ability to implement reforms of
state and local law enforcement.
As a companion to this Sidebar outlines in greater detail, congressional power to regulate state and local
law enforcement is not without limits. The Constitution grants the federal government only certain
enumerated authorities, with the Tenth Amendment reserving al other powers for the states. The
regulation of state and municipal law enforcement is an area that the Constitution general y entrusts to the
states. However, Congress possesses some authority to legislate on that subject, primarily through statutes
designed to enforce the protections of the Fourteenth Amendment and legislation requiring states to take
specified action in exchange for federal funds disbursed under the Spending Clause. This Sidebar
provides an overview of existing federal statutes intended to prevent and redress constitutional violations
by state and local public safety officials. It then presents some recent proposals that would change federal
regulation of state and local law enforcement.
Federal Regulation of State and Local Law Enforcement
Existing federal remedies for constitutional violations by state and local law enforcement include civil
and criminal enforcement by the U.S. Department of Justice (DOJ) and private suits by individuals
deprived of their rights by someone acting “under color of” state law. In addition, the federal government
encourages states to enact certain policies related to law enforcement by placing conditions on federal
funding. Federal agencies also independently investigate and gather data on law enforcement activities.
Federal Criminal Law
A provision of the federal criminal code, 18 U.S.C. § 242 (Section 242), makes it a crime for (among
other things) a person acting “under color of any law, statute, ordinance, regulation, or custom” to
“wil fully subject[ ] any person . . . to the deprivation of any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States[.]” A simple violation of the statute is
punishable by a fine and/or up to a year in prison. If bodily injury results, the offender may be fined
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and/or imprisoned for up to ten years. If death results or other aggravating factors are present, Section 242
provides for a fine and/or imprisonment for ten years to life or a death sentence (though the Constitution
forbids imposition of the death penalty for non-homicide offenses). A related provision, 18 U.S.C. § 241
(Section 241), makes it a crime for “two or more persons [to] conspire to injure, oppress, threaten, or
intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the
Constitution or laws of the United States[.]” Violations of Section 241 are punishable by up to ten years in
prison or, if certain aggravating factors are present, up to life in prison or death.
The Supreme Court has held that “officers of the State . . . performing official duties,” including public
safety officials, act “under color of . . . law” for purposes of Section 242. As DOJ has explained, law
enforcement officers may violate Section 242 through “excessive force, sexual assault, intentional false
arrests, theft, or the intentional fabrication of evidence resulting in a loss of liberty to another.” DOJ
enforces Sections 241 and 242 by bringing criminal charges against officers accused of violating those
statutes. People who believe their rights have been infringed may report such violations to DOJ, but
Sections 241 and 242 provide no private right of enforcement. Notably, if DOJ elects to pursue criminal
charges under Section 242, it faces a high standard of proof: in Screws v. United States, the Supreme
Court held that to show a violation of a prior statute whose wording mirrored that of Section 242, the
prosecution must prove the defendant had “a specific intent to deprive a person of a federal right made
definite by decision or other rule of law.” The Supreme Court extended this holding to Section 241 cases
in United States v. Guest. In practice, the specific intent requirement requires the prosecution to prove that
a local official intended to violate a federal right, as opposed to simply intending to, for example, assault a
victim. This results in what some view as a significant hurdle to bringing Section 241 and 242 claims.
DOJ Civil Enforcement
Another section of the U.S. Code, 34 U.S.C. § 12601 (formerly codified at 42 U.S.C. § 14141) renders it
“unlawful for any governmental authority, or any agent thereof, . . . to engage in a pattern or practice of
conduct by law enforcement officers or by officials . . . that deprives persons of rights, privileges, or
immunities secured or protected by the Constitution or laws of the United States.” According to DOJ,
potential violations of this provision include “excessive force, discriminatory harassment, false arrests,
coercive sexual conduct, and unlawful stops, searches or arrests.” DOJ enforces this provision by filing
civil complaints against al egedly offending law enforcement agencies. The statute does not create a
private right of action (i.e., a right for individuals harmed by violations to sue). Moreover, because the
law applies only to a “pattern or practice of conduct,” it cannot remedy isolated instances of misconduct.
Final y, the statute does not provide for monetary penalties. If DOJ successfully sues under the provision,
it may “obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.”
Private Civil Rights Litigation
Federal law also al ows individuals to seek civil redress for violations of their legal rights. The applicable
statute, 42 U.S.C. § 1983 (Section 1983), provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State
. . . subjects, or causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured[.]
Unlike the foregoing statutory provisions, Section 1983 creates a private right of action, meaning that
anyone suffering a covered deprivation of rights may sue the persons responsible. Moreover, unlike
Sections 241 and 242, courts have interpreted Section 1983 not to contain a specific intent requirement. A
prevailing Section 1983 plaintiff may be entitled to injunctive relief, attorney’s fees, and/or money
damages. Recovery may include both compensatory damages (designed to make the plaintiff whole and

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compensate for the legal injury) and punitive damages (designed to punish the defendant and deter future,
similar misconduct).
Similar to Section 242, Section 1983 applies to persons acting “under color of” state law. State and local
public safety officers general y act under color of state law for purposes of Section 1983: as the Supreme
Court has stated, “a public employee acts under color of state law while acting in his official capacity or
while exercising his responsibilities pursuant to state law.” However, law enforcement liability under
Section 1983 is subject to a significant judicial y created limitation: based on concerns that frequent
litigation could interfere with the work of law enforcement officers, the Supreme Court has held that law
enforcement officers benefit from qualified immunity from suit. The Supreme Court announced the
modern qualified immunity test in Harlow v. Fitzgerald, holding that “government officials performing
discretionary functions, general y are shielded from liability for civil damages” if they do not “violate
clearly established statutory or constitutional rights of which a reasonable person would have known.”
The Supreme Court has explained that qualified immunity is “an immunity from suit rather than a mere
defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted
to go to trial.” As a result, courts general y consider qualified immunity early in a Section 1983 case, and
a defendant whose qualified immunity defense is denied is entitled to an immediate interlocutory appeal.
A court evaluating a claim of qualified immunity considers two questions: (1) whether, viewed in the light
most favorable to the plaintiff, “the facts al eged show the officer’s conduct violated a constitutional
right”; and (2) “whether the law clearly established that the officer’s conduct was unlawful in the
circumstances of the case.” While that two-step analysis was once considered mandatory, in the 2009 case
Pearson v. Callahan, the Supreme Court held that judges could “exercise their sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be addressed first.” In a
series of recent cases involving police use of force, the Roberts Court has reversed lower court denials of
qualified immunity, stating that “clearly established law” must not be defined at a high level of generality
and instead needs to be particularized to the facts of the case, which can amount to a high bar for
plaintiffs to overcome.
Grant Conditions and Federal Oversight
The federal government provides financial support to state and local law enforcement in the form of
grants, and may require states to enact certain policies to qualify for such funding. As one example, the
Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program provides federal support for
state and local criminal justice programs. Among other conditions, states that receive Byrne JAG funding
must certify compliance with the Death in Custody Reporting Act (DCRA). Enacted in 2014 the DCRA
requires states to report to the Attorney General certain information regarding the deaths of individuals in
the custody of law enforcement agencies. Byrne JAG grants have also have been used to train officers on
use of force and de-escalation of conflict. In addition to guiding state and local law enforcement policy
through grant funding, federal government agencies independently collect data related to the use of force
by state and local law enforcement.
Proposals for Law Enforcement Reform in Congress
Even before the high-profile events of May and June 2020, commentators and legislators had made
numerous proposals for congressional reform and oversight of state and local law enforcement. This
section provides a sample of proposals in this area.
Qualified Immunity
Qualified immunity has been the subject of significant debate in recent years. A May 2020 report by
Reuters found that “since 2005, the [federal appel ate] courts have shown an increasing tendency to grant

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immunity in excessive force cases.” Critics of qualified immunity assert that the test the Supreme Court
announced in Pearson v. Callahan improperly hinders Section 1983 claims. Not only is it difficult for
plaintiffs to overcome a claim of qualified immunity, these commentators assert, but furthermore courts
often consider only whether a defendant violated clearly established law, without reaching the question of
whether the defendant violated the plaintiff’s rights—albeit in circumstances courts have not yet assessed.
Legal commentators have argued that this limited inquiry prevents the development of clearly established
law that could govern future Section 1983 cases. Some commentators also assert that the current doctrine
of qualified immunity fails to protect law enforcement officers from suit. Others defend the doctrine or
favor limited judicial reforms, asserting the need to afford police officers some level of deference when
making split-second decisions about the use of force, for example to subdue a fleeing or resisting suspect.
The doctrine of qualified immunity arises from the Supreme Court’s interpretation of Section 1983. Thus,
either the Court or Congress could modify the doctrine, and some legal scholars have cal ed on both
branches to address the issue. The Court is currently considering multiple petitions for certiorari raising
chal enges to qualified immunity, and Justice Thomas and Justice Sotomayor have both expressed
concerns about the doctrine. On the legislative side, in May and June 2020, Reps. Justin Amash and
Ayanna Pressley announced their intention to introduce legislation that would “eliminate” qualified
immunity.
Criminal Liability
While changes to the doctrine of qualified immunity could alter civil liability for law enforcement
officers, other proposals would aim to expand criminal liability for civil rights violations by officers. For
example, the Eric Garner Excessive Use of Force Prevention Act of 2019 would amend Section 242 to
provide explicitly that “the application of any pressure to the throat or windpipe which may prevent or
hinder breathing or reduce intake of air is a punishment” that may not be imposed on a racial y disparate
basis. The Police Accountability Act of 2020 would amend the federal criminal code to provide a penalty
for assault or homicide committed by certain state or local law enforcement officers. Some commentators
also advocate removing the specific intent requirement for Sections 241 and 242 announced in Screws and
Guest.
Limitations on Military-Grade Equipment
Under a federal program known as the 1033 Program, the federal government transfers certain excess
military equipment to state and local law enforcement agencies. Some commentators contend that this
type of equipment contributes to militarization of police forces without increasing public safety and
increases the risk of incidents of excessive force. The 1033 Program is authorized by statute, so Congress
has the power to alter or discontinue the program. On May 31, 2020, Sen. Brian Schatz announced his
intention to introduce legislation that would end the 1033 Program. Another proposal currently pending
before Congress, the Stop Militarizing Law Enforcement Act, would maintain the program but would
impose additional limitations and reporting requirements.
Grants and Conditions on Federal Funds
Numerous proposals currently before Congress would invoke the Spending Clause in an effort to
regulate state and local law enforcement activities. Some proposals would fund voluntary state
and local measures, such as use of force and bias awareness training or body cameras. Other
proposals would require states to enact certain policies in exchange for federal grants. For
instance, the Police Training and Independent Review Act of 2019 would fund training on
cultural diversity and de-escalation tactics while requiring participating states to “enact laws
requiring the independent investigation and prosecution of the use of deadly force by law

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enforcement officers.” The Preventing Tragedies Between Police and Communities Act of 2019
would oblige Byrne JAG grant recipients to mandate training on ways to reduce the use of force.
The Police Exercising Absolute Care With Everyone Act of 2019 would require Byrne JAG
grantees to enact laws limiting the use of lethal and less than lethal force by law enforcement.
The Next Step Act of 2019 would, among other things, direct Byrne JAG grant recipients to
submit quarterly reports to the Attorney General on officers’ use of force.

Author Information

Joanna R. Lampe

Legislative Attorney




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